Research Findings from Immigration Detention: Arguments for Increasing Access to Justice

Petra Molnar is a migration researcher and refugee advocate in Toronto. She is currently the Public Interest Articling Fellow at the Barbra Schlifer Commemorative Clinic, working in immigration and family law with women who have experienced domestic violence. Stephanie J. Silverman is the 2015 Bora Laskin Fellow in Human Rights Research and a Social Sciences and Humanities Research Council (SSHRC) Postdoctoral Research Fellow at the University of Ottawa

After decades of silence about the inner workings of immigration detention in Canada, this year has brought attention to the troubling incarceration of thousands of people for immigration-related reasons. Through embarking on a recent hunger strike in Toronto, detainees have been using their bodies as tools to demand high-level meetings with ministers to hold them accountable for their imprisonments.[1] Advocates for immigration detention reform have also been vocal about needing greater oversight for the Canadian Border Services Agency (CBSA) practices as well as a specific inquiry into the implementation of detention in Canada. While these public advocacy efforts are encouraging, our recent research[2] documents a growing system of incarceration ensnaring more categories of non-citizens than ever before. Under international law, detention should be a measure of last resort. It should be non-punitive, non-arbitrary, and conducted with regard to due process, and must not sweep up asylum seekers or other vulnerable people. Unfortunately, this is not always the case in Canada.

Who Can Be Detained In Canada?

Immigration detention falls under the framework of administrative law – the person being detained has not committed a crime under Canada’s Criminal Code, but is being detained for immigration-related reasons.[3] In 2013 to 2014, CBSA detained 10,800 migrants.[4] Men are disproportionately more likely to be detained, making up approximately 76 per cent of the population.[5] At the far extreme, at least 15 people have died while in Canadian immigration custody since 2000.[6] These deaths have been shrouded in secrecy and not much is known about the circumstances surrounding these deaths

Sections 54 to 61 of the Immigration and Refugee Protection Act (IRPA) and sections 244 to 250 of the Immigration Refugee and Protection Regulations (IRPR) set out the legislative grounds for immigration detention in Canada.[7] The IRPR and the Immigration, Citizenship, and Refugees Canada Policy Manual on Detention direct the administration of immigration detention by the CBSA. The IRPA sets out that CBSA can detain a person if they suspect that: the person poses a danger to the public, are unlikely to appear for an examination, cannot prove their identity, or are part of an irregular arrival, such as en masse on a boat.[8]

Migrants can be detained when they first come to Canada at virtually any point in their status regularization process. They can be arrested at the port of entry (for example, when they make a refugee claim at the airport), during the course of their proceedings in Canada, or they may be taken into detention if they are in Canada without status and are apprehended by a CBSA officer.

Immigration detention is financially costly. For example, in 2011-2012, CBSA spent $50,000,000 on immigration detention-related activities.[9] It costs $259 per day per detainee in a provincial jail.[10]

According to data obtained in March 2016 by the Canadian Council for Refugees, there are at least 82 children in immigration detention.[11] However, the scientific literature is clear that detention is extremely damaging to children,[12] and international law stresses that children should never be placed in detention. The Canadian detention system provides limited access to outside enrichment activities or educational supports.[13] Children who have been born while their mothers were in detention and who are Canadian Citizens, cannot technically be detained by CBSA, since immigration detention is for non-citizens only. Instead, they are incarcerated as “guests” of their parents.[14]For example, Alpha Anawa, born in 2013 was detained alongside his mother Glory Anawa, a refugee claimant from Cameroon who arrived to Canada three months pregnant. Even though he was a Canadian citizen by birth, Alpha had never been outside of the Toronto centre for two years.[15]

No Time Limits

Troublingly, there is no express outer time limit to the total detention period in Canada. IRPA also sets out mandatory reviews of the grounds for detention after 48 hours, then within the next seven days, and then every subsequent period of 30 days.[16] However, despite these safeguards, in 2014, at least 145 migrants had been detained for more than six months; and as of 2015, 38 detainees had been held for between one and two years, 16 for anywhere between two and five years, and four have been detained for more than five years. [17]

The lack of upper time limits compares poorly with thresholds in other countries of destination, such as Ireland (30 days), France (32 days), Spain (40 days), and Italy (60 days). In 2014, the UN Working Group on Arbitrary Detention chastised Canada for the decade-long immigration detention of Michael Mvogo, the so-called “Man with No Name”, before finally deporting him in 2015.

As it violates the human rights of some of the most vulnerable people in Canada, doctors groups, legal teams, and advocacy organizations have called on Canada to reform its immigration detention system. In addition to the aforementioned UN Working Group, Amnesty International highlighted the many issues in Canada’s immigration detention system at the United Nations Human Rights Committee periodic country review in the summer of 2015, pointing out that it violates a number of international human rights treaties to which Canada is a state party, such as the International Covenant on Civil and Political Rights, the Convention on the Rights of Persons with Disabilities, the Convention on the Rights of the Child, and norms of customary international law.[18]

Gaps in Access to Justice for Immigration Detainees

In our recent research, we argue that the current immigration detention system impedes fair, unprejudiced, and non-arbitrary treatment for minorities and vulnerable people. In particular, we look at how the current system perpetuates profound gaps in “access to justice” for immigration detainees. This means real-world barriers exist that impede immigration detainees from having access to a fair and just process to make their cases to leave detention and stay in Canada. Yet, our research demonstrates that detainees in Canada are being displaced from equal treatment before the law.

We identify a series of systematic everyday obstacles, including the arbitrariness of decision-making in detention reviews; the one-way telephonic communication out of the Central East Correctional Centre in Lindsay, Ontario, a provincial prison facility where many detainees are incarcerated on their own wing yet comingle with the general prison population; the difficulty with gathering new evidence; a high standard of proof for detainees; and prohibitive release conditions that collectively diminish the efficacy of monthly reviews of detention sentences. Significantly, finding and retaining high-quality legal counsel is both pivotal to gaining the entitlement to leave detention and the right to stay in Canada, as well as exceedingly difficult in real-life. Although detainees have a right to be represented in their detention reviews, the Canadian Government is not obligated to provide counsel. Key issues of access to quality counsel include insufficient funding, geographical distancing, and informational hurdles. For example, the Refugee Law Office of Legal Aid Ontario is at least two hours’ drive from the Lindsay prison, totaling at least four hours on the road for an in-person meeting. Also, legal aid certificates – or ‘vouchers’ provided by the Legal Aid Ontario to pay private practice counsel for services that the clients cannot afford – are rarely granted to cover travel time, let alone time of that magnitude and for an entire team.

The monthly reviews are another point where compounding real-world barriers impede access to procedural justice for immigration detainees in Canada. Detainees are entitled to monthly reviews of the reasons for their detentions; however, there is no express outer time limit, and rights to habeas corpus are extremely limited.[19] Above and beyond the basic deprivation of liberty and setback to immigrants and asylum-seekers’ interests, detention also inflicts irreparable psychological, physical, and social damage. We point to issues such as deteriorating daily detention conditions, far-flung facilities, unfair discretionary decision-making, lack of options for women, children, and vulnerable people, the compounding reasons for indefinite detention, and, again, inadequate legal aid and access to counsel for why these monthly reviews often become more of an emotional burden rather than tools to ensure just treatment.

Moving Forward

We welcome the recent invitation by the Canadian Government to begin again a national conversation on immigration and refugee policy reform. We hope that the meetings include (former) detainees, their advocates, Members of the Immigration and Refugee Board of Canada, and CBSA officers so that we can collectively determine how best to proceed. At the very least, telephonic communications should be improved, legal aid certificates should be enhanced, and the monthly reviews must be structured as sites of true accountability and oversight.

Our own suggestion would be the immediate introduction of duty counsel for immigration detainees in Canada. Duty counsel means having lawyers on-site and freely available for detainees to consult with about their cases and their releases (either into the community or through deportation). The presence of duty counsel can enhance feelings of mutual trust and provide oversight to ensure better cooperation amongst all the groups. Since their on-site presence could also speed up casework, this strategy could save the Federal Government money in the long-term. While not providing a ‘solution’ to the procedural and fundamental injustices of incarcerating people because of their immigration statuses, the provision of duty counsel would go a long way towards increasing access to justice for immigration detainees.

For other recent explorations of using the ‘access to justice’ lens in critiques of immigration and refugee policy, see:

Thomas, C. R. and L. Benson (2016). Caught in the Web: Immigrant Children in Removal Proceedings. Impact: Collected Essays on Expanding Access to Justice. New York City, New York Law School. 02: 31 – 41.